Kripal Singh and Others vs State of Madhya Pradesh

This criminal appeal has been filed on 25/01/2010 under Section 374 (2) of the Cr.P.C. by the appellants namely, Kripal, Vimla Bai, Vineeta and Dayal Singh against the judgment dated 12.01.2010 passed by Vth Additional Sessions Judge, Chhindwara, Shri Sanjeev Pandey (Fast Track Court) in Sessions Trial No. 256/2007. By the aforesaid judgment, the learned trial Court convicted the appellants for offence punishable under Sections 302/24 of IPC and sentenced them to undergo life imprisonment with a fine of Rs.2000/- each. In default of payment of fine amount to undergo six months additional rigorous imprisonment has also been awarded.

As per the prosecution case, the accused Dayal Singh Rajput himself lodged a marg intimation Ex. P-21 and First Information Report Ex. P-22 on 05.09.2007 at about 7: 00 a.m. Marg No. 35/2007 was registered by the police and the offence under Sections 302/34 of IPC was also registered by the Police. It is stated in the aforesaid, FIR that Gopal Singh Yadav was the younger brother of the complainant Dayal Singh. On 04.09.2007 at about 10:00 p.m. in the night Kripal Singh, his wife Vimla Bai and daughter Vineeta beated the Gopal Singh by the help of lathis. The complainant tried to intervene. Wife of Gopal Koushalya Bai and Kapoor Chand also tried to save the Gopal. After beating they left the Gopal in the house of his father Pratap. In the morning at about 6:00 a.m. Gopal was found dead. The incident took place upon the dispute regarding partition of the lands. The Police after registration of the crime reached on the spot and issued the notice Ex. P-1 to the witnesses. Thereafter, prepared the inquest panchnama Ex. P-2. Police also prepared a sport map Ex. P-3 and seized the material, soil etc. from the sport by Ex. P-4. The dead body was sent for postmortem with the application Ex. P-20. Dr. Naresh Lachhwani PW-12 conducted the postmortem and gave the report Ex. P-23, in which the death was found homicidal and was the result of injuries. The Patwari also prepared the spot map Ex. P-18. The police recorded the statements of various witnesses and after investigation come to the conclusion that the murder has been committed by complainant Dayal Singh himself, and Krapal, Vimla Bail and Veenita in furtherance of their common intention. Complainant was also found involved in the crime. Therefore, police arrested all four accused by Ex. P-5 to P-8. Upon interrogation the information given by the accused persons recorded in the shape of memos Ex. P-9 to P-12.

Thereafter in furtherance to the information given by the accused the police seized the lathis from the all accused and prepared the seizure memos Ex. P-13 to P-16.

After investigation, the police filed the challan No. 215/07 before the Judicial Magistrate First Class, Souser, District Chhindwara on 03.02.2007 who registered the Criminal Case No. 1629/07 and committed the case to the Court of Sessions on 20.12.2007.

The Sessions Court, Chhindwara registered the Crime No. 256/2007 on 26.12.2007. On 25.01.2008 the case made over to the Court of Special Judge, Chhindwara, who framed the charges under Sections 302/34 of IPC against all four accused on 08.02.2008. The accused persons denied from the charges and demanded for trial. Thereafter, the prosecution has examined 15 witnesses in support of its case. The accused persons also examined two witnesses in their defence.

After concluding the trial, the learned trial Court came to the conclusion that all four accused persons committed the murder of Gopal with a common intention. Therefore, the trial Court held them guilty for the offence punishable under Sections 302/34 of IPC and after hearing upon the sentence, the trial Court awarded the life imprisonment with a fine of Rs. 2000/- each, to all four accused.

This appeal has been preferred against the aforesaid conviction and sentence. It is submitted by the appellants that the judgment passed by the trial Court and the findings arrived by the trial Court are illegal, perverse and contrary to the law. The trial Court did not appreciate the evidence in proper way. The reasons of false implication was also available. The statements of so called eye witnesses were not reliable. The trial Court has completely overlooked the material, omission and contradiction in the case of the prosecution. The trial Court adopted the policy of pick and choose from the evidence of the prosecution witnesses which caused great prejudice and miscarriage of justice. Therefore, the judgment passed by the trial Court is liable to be set aside and the appellants are entitled to get the order of acquittal from the aforesaid charges. Hence, it is prayed to set aside the judgment passed by the trial Court and to acquitted the appellants for the offence under Sections 302/34 of IPC.

On the other side, the State strongly opposed the appeal. It is submitted by the State that the case is based upon the evidence of eye-witnesses. The wife of deceased namely, Koushalya Bai is also an eye witness, Kapoor Chand PW-14 is also an eyewitness. The case is also supported by the evidence of other witnesses. The trial Court did not commit any mistake by holding guilty to the accused persons for the offence under Sections 302/34 of IPC. The accused Dayal Singh was also involved in the crime but he himself lodged the FIR with the intention to save himself. Therefore, trial Court passed the judgment after proper appreciation of the evidence and no interference is required in the aforesaid conviction and sentence. On the aforesaid grounds the state prayed for dismissal of the appeal.

It appears from the record, that the Gopal is the deceased in this case, who expired in the intervening night 04-05.09.2007. Pratap is the father of Gopal and Sukhmaniya is the mother of Gopal. Pratap and  Sukhmaniya having three sons, one was Gopal and the other are accused Dayal and accused Kripal. Accused Vimla Bai is the wife of accused Dayal and Accused Vineeta is the daughter of Dayal and Vimla Bai. It is also an admitted position that the deceased and his wife Koushalya were residing in a separate house while the other accused persons were residing with the mother and father viz. Pratap and Sukhmaniya in a common house but the portions were separated.

They all are the resident of village Chiranvani Chouki Khamarpani, P.S. Bichua, district Chhindwara.

Dr. Naresh Lachhwani PW-12 is the Medical Officer, posted at Public Heath Centre, Khamarpani, who conducted the postmortem of the dead body of Gopal on 05.09.2007 and gave the report Ex. P-23. As per the opinion given by the doctor, he found the various injuries upon the person of deceased Gopal. External injuries found upon the body have been described in para-3 of the statement in which the following six injuries have been mentioned:-

(1) Large diffusion contusion mark over the left upper part of back- 6''x 6''.

(2) Blackish colour contusion mark over the left posterior chest wall- 4''x4''.

(3) Abrasion over just below right nose - 1''x1''.

(4) Abrasion over left forearm - 1/2''x1/2''.

(5) Swelling (2''x 2'') over upper part of Tibia Fabula region of left lower infirmities on opening fracture of both bone (Tibia Fabular) at upper 1/3'' of region ( just 3'' below left knee).

(6) Swelling (2''x 2'') over upper part of Tibia-Fibular region of right lower enormities on opening fracture of both bone (Tibia Fibula) at upper 1/3'' region (just 2'' below right knee).

The injury found upon the head of the deceased are also described in the same para and the aforesaid injuries are as under:-

(1) abrasion over right side of front of head 1''x 1''- (1/2''x 1'' above from right side of eyebrow).

(2) L/w (transverse) over right parietal region - 4''x2''x 2''.

(3) Longitudinal l/w just 2'' in front of lateral to 2nd injury-3''x 1''x 2''.

(4) Longitudinal L/w just 2''x 3'' lateral to 3 injuries -3''x1''x 2''

(5) Longitudinal L/w over left parietal region - 2''x1''x 2''.

(6) Transverse L/w over left frontal bone - 2''x 1''x 1''.

The doctor also said that semi digested food was found in the intestine and the alcoholic smell was also found. In para-3 of cross-examination he also admits that the alcoholic smell was present in the intestine. As per the opinion of the doctor all injuries were antemortem and the death was the result of excessive bleeding from the injuries resulting the failure of heart and respiratory system. The period of death was between 9 to 16 hours. Therefore, it is proved by the evidence of aforesaid doctor and his report Ex. P-23 that the deceased sustained various injuries and his death was homicidal because of the excessive bleeding from the injuries.

Now, we see whether the all accused persons are involved in the crime or not? In para-9 of the impugned judgment the trial Court mentioned that Laxman PW-2, Annu Bai PW-3, Santram PW-4, Koushalya Bai PW-7, Sonelal PW-13 and Kapoor Chand PW-14 are the eye-witnesses in this case as per prosecution. In para-19 the trial Court observed that the testimony of defence witnesses namely, Chamma DW-1 and Yashvant Rao DW-2 is not reliable.

It is the duty of every Court that during appreciation of the evidence the same weightage should be given to the witnesses of both sides. When the incident took place between the closed family members in that case the possibility of false implication of some other family members cannot be ruled out. Therefore, minute scrutiny of the evidence is always required. In this case, the deceased was the real brother of accused Kripal and Dayal Singh. It is an admitted position that the Dayal Singh himself lodged the FIR as well as marg intimation. In normal circumstances, it is not possible that an accused who committed the offence like murder with three other accused will have the courage to lodged the FIR against the remaining three accused persons.

The statement of wife of the deceased Gopal namely, Koushalya Bai is the most important in this case. The reason behind the murder has been described by the witness in her statement. It is stated that previously some quarrel was took place between the Kripal Singh and Mahtab and Kailash. The Kripal Singh told the Gopal that he takes the responsibility of the crime, Kripal and Dayal will help him. A criminal case was registered and the Gopal was convicted for two years imprisonment. His appeal filed before the Sessions Court Chhindwara was also dismissed and thereafter, a case (may be revision) was pending before the High Court of the Jabalpur. It is stated that the accused persons Kripal and Dayal had promised to the Gopal that they will spend the money in the trial of the Court case. But thereafter they refused to give any money. Gopal himself spend the money in the case and sold out his three acres of land. As per witness Koushalya Bail, on the date of incident at about 9.00 p.m., she went to the house of Kripal Singh with her husband Gopal for demanding the money because the case was listed in the Jabalpur on the next day of Janamashtmani. Therefore, as per the evidence of Koushalya Bai, the Gopal wants the money for criminal case which was against the Gopal Singh while the real culprits was Kripal Singh. After assurance to give the expense of criminal proceedings, the accused persons refused to fulfill their promise. The deceased was going to attend the case in the High Court of Jabalpur because the case was listed on the next day of Janamashtmi. The deceased was not having the money, therefore, he went to the accused person.

It is also proper to mention here that Koushalya Bai PW-7 in para-9 denied the suggestion of defence that his husband was used to drink. This statement is not correct because in the postmortem report the smell of liquor was found in the intestine. Other witnesses in this case also admitted the fact that the Gopal was habitual drinker. Laxman PW-2 admitted in para-11 that the Gopal was heavy drinker. Annu Bai PW-3 also said in para-5 that the Gopal was habitual drinker and every time he was living in drunken position. Therefore, it can be said that the Koushalya Bai deliberately tried to suppress the fact that his husband was the habitual drinker.

In para-11, Koushalya Bai also admitted that before one day from the incident her father-in-law, Pratap Singh also lodged the report against the deceased Gopal regarding the threat given by the Gopal. In Para-12 the witness also admitted that the land of the family was divided between the family members. Gopal Singh get 7 acres of land out of which 3 acres land was sold out by him and the remaining 4 acres land was available with him.

The defence witness Chamma DW-1, said that at the time of Janamashtmi at about 9:00 to 10:00 p.m. Gopal came in the drunken position and abusing his father Pratap, because the Pratap had lodged the report with the police against the Gopal. After hearing the noise of quarrel between Gopal and Pratap, the accused Kripal are also came there. The witness said that the Laxman, Koushalya, Sonelal and Kapoor Chand were not present there. The witness again said that the Gopal was asking to Pratap for furnishing his bail and when the Pratap refused then the Gopal start the quarrel. In Para-4 witness also said that Kripal tried to intervene then the Gopal also assaulted him and he himself fell down upon the stones. In Para-4, the witness said that the Laxman PW-2 is the bataidar of Koushalya and the Koushalya gave the money to Sonelal and Kapoor Chand for giving the false evidence against the accused persons.

The defence witness Yashvant Rao Choudhary DW-2 said that the Gopal always used to abusing his father and mother. On the date of incident which occurred at the time of Janamasthmi, the accused Gopal came in a drunken position with a ladhi. The Gopal abusing and assaulted to his father Pratap Singh. When Pratap Singh cried, then the witness called the Kripal by saying that Gopal is beating to Pratap Singh. The witness again said that upon his calling the Kripal came there and consoled to the Gopal thereafter, he took the Gopal in the house of the Pratap and lying him on the bed.

Therefore, it is transpired from the evidence of both defence witnesses that the presence of Kripal is not disputed. The witness tried to establish that the Gopal sustained the injuries because he fell down on the earth bearing the stones. But looking to the number and nature of injuries, it cannot be accepted that the all injuries may be inflicted because of Gopal was fell down on the earth. Definitely the injuries found upon the person of the deceased are the result of assault.

Koushalya Bai PW-7, said that she went with her husband to the house of Kripal for asking the money because the case was fixed in the High Court on the next day of Janamashtmi. The witness again said that Kripal and Dayal both denied to give the money then her husband told them that both of them have promised to give the money but now you are denied and he sold out his 3 acres of land for bearing the expenses of criminal case. The witness again said that all four accused took out the sticks/lathis from their house and assaulted to Gopal Singh. The Gopal Singh fell down and became unconscious. This incident took place in the Chapri thereafter all accused persons left the Gopal after lying him on the bed in the house of Pratap.

If we see the cross-examination of the Koushalya Bai PW-7 then it appears that she deposed before the Court that she went with her husband to the house of Kripal but this fact is not mentioned in her police statement Ex. D-3. No doubt it is mentioned in Ex. D-3 that she was on the spot. It may be possible that upon hearing of sound of quarrel she reached on the spot and not was with her husband from the beginning of the incident.

Koushalya Bai PW-7 involved of all four accused in the incident. Now we see the other evidence. Laxman S/o Jairam PW-1 said in his statement that in the morning Dayal came in his house and said that Gopal has been expired. Thereafter, the witness reached to the house of Pratap Singh with accused Dayal and found that the dead body of Gopal was laying there. The witness again said that at that time Pratap and Sukhwati told that the Gopal has been killed by Kripal. In this case, the prosecution did not examine the mother and father of the deceased Gopal. As per this witness, he received the information from Pratap and Sukhwati that the Kripal killed the Gopal. Pratap and Sukhwati (Mother and Father) were the important witnesses in this case. Because the Pratap himself lodged a report against the deceased only before one day of the incident. But the prosecution neither examined them under Section 161 of Cr.P.C. nor produced them before the Court. The witness Laxman also said that he was with the Dayal at the time when Dayal lodged the First Information report. The witness is the Kotwar of village and his presence is also mentioned in the FIR Ex. P-22. It is stated in the FIR that Dayal gave the information to the Kotwar and thereafter he went to lodged the report with the Kotwar. This witness has not been declared hostile by the prosecution. In the aforesaid condition, the prosecution is also bound from the evidence of these witnesses. The substance of the evidence of this witness is that when in the morning the witness reached in the house of Pratap then Pratap and Sukhwati told him that the murder committed by the Kripal.

Laxman, S/o Damu PW-2, said in para-2 that in the night at about 8:00 a.m. he was going to his shop at that time in front of house of the Kripal, all four accused were beating to Gopal Singh by lathis, several persons were present there.

The aforesaid witness Laxman PW-2 also said that when he tried to intervene than accused persons told him to fled away otherwise they will beat him. But it appears from the cross-examination in para-15 that the witness himself admitted that the aforesaid statement was not given by him to the police. In para-2, he also said that after committing the marpeet the accused persons shifted the Gopal Singh in the house of Pratap Singh. ( vkjksihx.k us ekjihV djus ds ckn xksikyflag dks mlds firk izrkiflag ds ?kj ij Mky fn;kA). But in para-16 he himself admits that the aforesaid fact was not disclosed by him to the police.

Laxman PW-2 admits in para-8 of his statement that Gopal was having 4 acres of land and he was cultivating the land of Gopal with the agreement of batai up to last year. Therefore, it can be said that this witness is an interested witness because he was cultivating the land of the deceased. The defence witness DW-1 also said the aforesaid facts. The presence of the witness on the spot also created some doubt because he is telling that he was going towards the shop at about 8:00 a.m. As per the police case the incident took place at about 9.45 p.m. in the night. Usually this time is not for going towards the shop in the village but in this time the shopkeepers are coming back from their shop. The suggestion also given in para-18 that the witness neither going towards the shop nor he seen any incident. This witness is also related to the arrest memo, memos under Section 27 of the Evidence Act, and memos related to the seizure of lathis ( Ex. P-5 to Ex. P-16). The witness admitted his signature upon the aforesaid all documents but admitted in para-21 that he signed on the aforesaid documents upon the instigation of the police. No any information or the seizure was made before him. The Inspector asked him that he wrote the statement of accused person regarding the lathis and the witness has been called for signature. Looking to the aforesaid attitude of the witness it can be inferred that this witness is a interested against the accused persons and in favour of deceased Gopal. Therefore, it will not safe to rely upon the entire testimony of the witness. The comparison of the deposition of this witness with the other witnesses is also necessary.

Annu |Bai PW-3 is also an eye witness. She said that in front of the house of Kripal there was a quarrel between Kripal and Gopal in the passage. Kripal was beating to Gopal by the lathi. The witness also seen the incident and she did not see anybody upon the spot. She also said that nobody intervened in the aforesaid quarrel and Kripal killed the Gopal in the passage. Thereafter, his dead body was kept in the house of the Pratap Singh. This witness has been declared hostile by the prosecution but in para-2, she did not support her police statement Ex. P-17 and said that Vimla Bai, Vineeta and Dayal were not beaten to the Gopal and the aforesaid facts was not deposed by her in the police statement Ex. P/17. Therefore, it appears from the statement of this witness that only Kripal committed the murder of Gopal. This fact is found in support from the evidence of Laxman PW-1.

Santram PW-4 said that his house is situated in front of the house of Dayal. In the courtyard of Kripal, the witness seen the Kripal and his wife and daughter. They all took the Gopal to inside the house from the courtyard. Thereafter, what happens the witness does not know. On the next day, he came to know that the Gopal has been expired and he saw the dead body of Gopal was lying in the house of the Pratap. This witness has also been declared hostile by the prosecution. But the witness said that the police did not recorded his any statement. The witness did not support his police statement. No any omission and contradiction has been pointed out in his cross examination. Therefore, as per the evidence of this witness he did not seen the incident. He only seen Kripal and his wife and his daughter on the courtyard with Gopal. The presence of all family members in the courtyard is natural and it is not the indication of common intention.

Girdharilal Sahu PW-9 is running a STD booth in Devri. The witness said that at about 5:00 am, the wife of Gopal came in his booth and said that her husband has been beaten by Dayal and Kripal, therefore, he connect the phone to 100 number, but the witness not connect the phone because he was going to answer the natural call. When he came back at that time, the wife of Gopal was went away. This witness also has not been declared hostile by the prosecution. It appears from the evidence of this witness, that Koushalya Bai disclosed only the names of Kripal and Dayal to the witnesses while the Koushalya Bai in her own statement involved all four accused persons. Therefore, the evidence of this witness is also created some doubt upon the testimony of the Kaushalya Bai.

Sonelal PW-13 said at about 8:00 p.m. in the night he came back from her agriculture field after doing the work. When he reached in the house, he heard the sound of Gopal. As per witness the house of Kripal is situated in front of the house of the witness. Gopal was demanding Rs.10,000/- from Kripal, but the witness think that there is a dispute between the family members therefore, he did not take seriously. After some time, the sound of stick was came then Koushalya Bai was weeping and was asking to save her husband. Upon hearing the sound of Koushalya Bai the witness came out from the house and seen that in the courtyard of Kripal the all four accused were beating to the Gopal, who was fell down on the earth. The witness asked the Kripal why he is beating, if the beating will excessive he will die, then the Kripal said to keep mum.

If we see the entire statement and cross-examination of the Sonelal PW-13, then a doubt is created upon his presence on the spot. The witness says that the Gopal was demanding Rs.10,000/-. But this amount has not been disclosed by any of the witness of the case including the wife of the deceased. The witness said before the Court that he tried to intervene by asking Kripal that if he is beating then in case of excessive beating the Gopal may die. But as per his police statement he did not intervene in the incident.

The presence of the aforesaid witness is also doubtful as per para-7 of the cross-examination. He admitted that usually he was living at his agriculture field. He used to came at home for taking the meal at about 7:00 p.m. on very day, thereafter, he slept on the agriculture field. In the aforesaid situation, the question arise that why upon the date of incident the witness was stay in his home. In Para-8 he said that he disclosed to police only regarding the incident which was took place in the night in which Gopal was beating. He is not stating that he disclosed to police the name of accused persons as assailant. In para-15 he said that the incident first took place in the house of Pratap and thereafter, they came out from the house and the Gopal fell down in the courtyard. This statement is opposite to the prosecution. Because as per the prosecution case the incident took place at the outside of the house, thereafter, the accused persons left the Gopal in the house of Pratap. Therefore, looking to the entire statement this witness is not found trustworthy, suspicion is created upon the testimony of the aforesaid witness and it is doubtful that whether the witness has seen the incident or not? Whether the witness was present or not on the spot.

Kapoorchand PW-14 said that at about 8:00 p.m. in the night he was going towards his agriculture filed, after taking the food for his father. Upon hearing the voice of Koushalya Bai who was crying, the witness seen that in the passage Kripal, Dayal, Vimla and Vineeta were beating to Gopal. But the witness again said that due to fear of Dayal he went to his filed and did not try to intervene. In Para-3 the witness said that he only seen the incident at about 2 to 4 minutes. In Para-4 he also admits that the facts disclosed before the Court where not disclosed him to the police at the time of recording his statement. In para-7 he said that the police did not recorded his any statement. Therefore, in the aforesaid situation, this witness is also not reliable because he did see the entire incident and also not examined by the police. The first time he deposed before the Court about the incident.

In this case, another important fact is also having some substance. Dayal is the accused in this case, who himself lodged the Fist Information Report and the Marg report. In that report, he mentioned the name of Koushalya Bai as eye witness, who is the wife of the deceased. If Dayal would participated in the murder then he would not mentioned the name of Koushalya Bai as eye witness in the FIR. As per prosecution case, the Koushalya Bai was present upon the spot. If the Dayal committed the murder in presence of Koushalya Bai then he never mentioned her name in the FIR.

Therefore, it appears from the entire evidence that the presence of all four accused can not be doubted but the active participation in the crime is not established. Only presence of family members is not a indication of having common intention.

The entire evidence shows the name of Kripal is mentioned by witness as main culprit. The possibility of false implication of Dayal, Vineeta and Vimla cannot be ruled out. They may be falsely implicated in this case because in the statements of some witnesses it has come that the Kripal assaulted to the Gopal. Previous incident was also took place between the Gopal and Kripal in which the Gopal admitted his responsibility upon the assurance of Kripal that he will bear the entire expenses of the criminal trial. Therefore, now offence is proved beyond reasonable doubt against the Kripal. But the position of other three appellants are different. There is strong doubt upon their participation in the crime. They may be falsely implicated in this case.

Learned counsel for the appellants draw our attention towards in the case of Atul Thakur Vs. State of Himachal Pradesh etc. 2018(1)ANJ (SC) (Suppl.), 41 and Madhavan and Ors. Vs. The State of Tamil Nadu 2017(2)ANJ (SC) 249, and argued that the case is coming under the purview of Section 304 Part-I or Part-II of IPC and not come under the purview of Section 302 of IPC. This arguments also having no force, Kripal was having the intention, he involved the deceased in previous criminal case by giving false assurance to spend the money in criminal case. But thereafter, he did not fulfill his promise. If the Gopal was abusing his father Pratap then the accused persons were in position to stop him without causing any injury but the Kripal causes various injuries to his brother Gopal. Number of injuries shows the intention of the accused. Therefore, the trial Court rightly convicted the accused Kripal for the offence punishable under Sections 302/34 of IPC. But the liability come under Section 302 of IPC because the involvement of other accused is not proved. Hence, the conviction of the Kripal is maintained with conversion of the Section 302/34 into the Section 302 of IPC. The sentence awarded by the lower Court is already proper and the minimum sentence prescribed under the law. Therefore, no interference is required in the sentence. As a result, this appeal is partly allowed in reference to the accused Dayal, Vimla Bai and Vineeta. They are acquitted by giving them benefits of doubt. The conviction and sentence of Kripal is maintained subject to modification in the Section 302 of IPC in place of Section 302/34 of IPC.

The jail authorities are directed to release the accused Dayal, if his presence is not required in any other case.

One copy of this judgment be sent to accused Kripal through the jail authorities. Remaining two accused named, Vimla Bai and Vineeta are on bail. Their bail bonds are discharged.